dissenting:
The majority opinion is thoughtful and does not yield an unfair result. The problem with the interpretation of section 546(a) (215 ILCS 5/546(a) (West 1994)) is that all of the cases cited contain snippets that allow almost any conclusion. See Urban v. Loham, 227 Ill. App. 3d 772 (1992).
The statute establishing the Fund provides that a claimant is "required first to exhaust his rights under any provision in any other insurance policy which may be applicable to the claim.” 215 ILCS 5/546(a) (West 1994). Cases cited mandate that the claimant must file a claim with his own carrier under the uninsured motorist clause and that the filing must be timely.
The issue presented to us is whether the claimant may settle the claim with his own carrier and still be deemed to have exhausted his rights. Clearly when the claimant effects a settlement, he has waived some of his rights, i.e., the right to proceed to a hearing that would yield the highest amount which he could recover. By settling, he has released and waived this right.
Where a claimant releases a right to recover, can we consider that he has exhausted his rights in attempting to collect as is required by the Act? If the claimant can settle with his own carrier and then proceed against the Fund, is there any incentive to seriously pursue the claim against his own carrier?
The majority does not even require that the settlement be in good faith or be determined a fair settlement. At least one case has stated that "[ujnder the provisions of section 546(a), before a claimant can recover from the Fund, the claimant must first recover any amounts available under the claimant’s own insurance policy.” (Emphasis added.) Herriford v. Boyles, 193 Ill. App. 3d at 952-53. Neither the case nor the majority opinion makes clear whether "amounts available” means an amount that the parties would agree upon or the amount of the coverage afforded under the policy.
In Urban, upon which the majority relies, the court was faced with a claimant who had failed for 21/a years to file a claim against his own insurance carrier so that the language of the decision must be limited to the facts of that case.
While I believe that the majority’s conclusion is fair in light of the smallness of many of the claims and the lack of interest most lawyers will have in being required to prove their case before an arbitrator and then be required to prove it again in his claim against the Fund, we must give the words employed by the General Assembly their natural meaning. They do not give a claimant the right to unilaterally decide what is a fair apportionment between his own carrier and the Fund.
Under the majority’s rule, the claimant could settle a $10,000 claim for $1 and seek the balance from the Fund since there is no requirement that the settlement be in good faith.
The majority is correct in the observation that the solution lies with the legislature and that the Act cries for amendment to explicitly inform the claimants of their rights and the flexibility that they have in compromising a portion of their claim.